ComfortGuard Monitoring Service Agreement
About This Agreement, Our Services, And Your Rights
ComfortGuard, business unit of Emerson Electric Co., (“ComfortGuard,” “we,” “us,” or “our”) will provide to you (“you,” “your,” or “Customer”), on the terms and conditions set forth in this ComfortGuard End-User Agreement (the “Agreement”), services to monitor and diagnose the performance of the heating and cooling system (each a “Service” and collectively the “Services”) in your home (“Premises”) and use of a homeowner portal to access data and information related to the Services (“Homeowner Portal”).
The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services unless otherwise indicated. Additional terms and conditions applicable to any physical equipment (for example, a monitoring hardware components or gateway for Internet connectivity) used in connection with the Services are included in this Agreement in the section titled “MAINTENANCE AND OWNERSHIP OF EQUIPMENT”. Our privacy statement can be found in the Homeowner Portal.
We may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future. Unless this Agreement or applicable law specifies otherwise, we will give you thirty (30) days prior notice of any significant change to this Agreement. If you find the change unacceptable, you have the right to cancel your Service(s) by providing us with notice that you terminate your Services. However, if you continue to receive Service(s) after the end of the notice period (the “Effective Date”) of the change, we will consider that you have accepted the changes. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose. We may provide such notice on your monthly bill, as a bill insert, using the email address you have provided to us, using the Homeowner Portal, or other communication permitted under applicable law.
General Terms And Conditions
1. Acceptance Of This Agreement
You will have accepted this Agreement and be bound by its terms if you use the Services or otherwise indicate your affirmative acceptance of such Services.
2. Charges And Billings
- Charges, Fees, and Taxes That You Must Pay. You agree to pay all charges associated with the Services, including, but not limited to, monthly service charges, premium service charges, applicable federal, state, and local taxes (however designated) and any fees or payment obligations imposed by governmental or quasi-governmental bodies for the sale, installation, use, or provision of the Services. YOU WILL BE RESPONSIBLE FOR PAYING ANY GOVERNMENT IMPOSED FEES AND TAXES THAT BECOME APPLICABLE RETROACTIVELY. We may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future. We will provide you with notice and an effective date of any change in our prices or fees, unless the change in price is related to a change in governmental or quasi-governmental taxes, fees or assessments, in which case we may elect not to provide notice except where required by applicable law. Not all fees apply to all Services.
- How We Will Bill You. Except if you enrolled in the Services as part of a promotional program that does not require a term commitment, Services are provided under an initial twelve (12) month term (“Initial Service Term”), after which it will be provided to you on a month-to-month basis. You will generally be billed monthly, in advance, for recurring service charges and fees, including during the Initial Service Term. IN ADDITION, UNLESS OTHERWISE SPECIFIED BY US, YOU MUST PAY, ON OR BEFORE THE DAY WE INSTALL ANY OR ALL OF THE SERVICES, THE FIRST MONTH’S SERVICE CHARGES, AND ANY DEPOSITS. Your first bill may include monthly recurring charges for the next month and charges for non-recurring charges for any nonrecurring services you have received. If you make partial payment of any bill, we will apply that payment to the outstanding charges in the amounts and proportions that we determine. However, we do not waive our rights to collect the full balance owed to us by accepting partial payment. If you have pre-paid for a term service purchase from an authorized re-seller (“Pre-Paid Term”), you will not be billed for recurring service charges and fees, except if you choose to add premium services. You may receive a bill from us directly if the authorized re-seller from whom you purchased the Pre-Paid Term elects for ComfortGuard to bill you directly. At the end of the Pre-Paid Term, we will provide Services to you on a month-to-month unless you provide us with notice prior to the end of the Pre-Paid Term that you terminate your Services.
- Third-Party Charges That Are Your Responsibility. You acknowledge that you may incur charges with third-party service providers that are separate and apart from the amounts charged by us. These may include charges resulting from accessing the Internet, purchasing or subscribing to other offerings via the Internet or purchasing equipment for use with or recommended by the Service. You are solely responsible for all charges payable to third parties, including all applicable taxes.
- Payment by Credit Card. If you use a credit card to pay for the Services, which use is governed by the card issuer agreement for that card, and you must refer to that agreement for your rights and liabilities as a cardholder. If we do not receive payment from your credit card issuer or its agents, you agree to pay all amounts due upon demand. You must be authorized to use the payment method that you enter when you create a billing account. You authorize us to charge you for the Service using your payment method and for any paid feature of the Service that you choose to sign up for or use while these terms are in force. We may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. You must keep all information in your billing account current. You can access and modify your billing account information using the HomeownerPortal. You may change your credit card type or number at any time. If you tell us to stop using your payment method and we no longer receive payment from you for the paid Service, we may cancel that Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
- Our Remedies if You Pay Late or Fail to Pay
i. Late or Non-Payments: You may be billed fees, charges and assessments related to late payments or non-payments if for any reason (i) we do not receive from you any required payment for the Services by the payment due date or (ii) you pay less than the full amount due for the Services.
ii. Fees Not Considered Interest or Penalties: We do not anticipate that you will fail to pay for the Services on a timely basis, and we do not extend credit to customers. Any fees, charges, and assessments due to late payment or nonpayment are not interest, credit service charges, or finance charges or penalties. Rather, they are liquidated damages intended to be a reasonable advance estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges, and assessments, because we cannot know in advance: (a) whether you will pay for the Services on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or non-payment.
iii. Collection Costs: If we are required to use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection. These costs include but are not limited to any collection agency’s fees, reasonable attorneys’ fees, and mediation or court costs.
iv. Suspension/Disconnect: If you fail to pay the full amount due for any or all of the Services then ComfortGuard, at its sole discretion in accordance with applicable law, may suspend or disconnect any or all the Services you receive.
v. Reconnection Fees and Related Charges. Should you wish to resume a Service after any suspension, we may require you to pay a reconnection fee. Should you wish to reinstate any or all Services after disconnection, we may require you to pay an installation fee and/or service activation fee. These fees are in addition to all past due charges and other fees. Reconnection of the Services is subject to our credit policies, this Agreement and applicable law.
f. Your Responsibilities Concerning Billing Questions. Subject to applicable law, if you intend to dispute a charge or request a billing credit, you must contact us prior to the end of the billing period. You waive any disputes or credits that you do not report within that time.
Subject to applicable law, we may change our prices, fees, the Services and/or the terms and conditions of this Agreement in the future. We also may rearrange, delete, add to or otherwise change features or offerings contained in the Services. Unless this Agreement or applicable law specifies otherwise, we will give you thirty (30) days prior notice of any significant change to this Agreement. If you find the change unacceptable, you have the right to cancel your Service(s) by providing us with notice that you terminate your Services. However, if you continue to receive Service(s) after the Effective Date of the change, we will consider that you have accepted the changes. We may provide such notice on your monthly bill, as a bill insert, using the email address you have provided to us, using the Homeowner Portal, or other communication permitted under applicable law. However, if you continue to receive Service(s) after the end of the Effective Date of the change, we will consider that you have accepted the changes.
4. Maintenance And Ownership Of Equipment
ComfortGuard has no responsibility for the operation or support, maintenance or repair of any equipment, software or services that you elect to use in connection with the Services (the “Customer Equipment”). If we certify third party equipment as compatible with the Services, we will post a list of compatible equipment on the Homeowner Portal. These requirements may be located at an alternative site if we so notify you. To use the Services, you will need a broadband gateway / router that meets our specifications. You agree to keep the gateway connected, and your Internet connection active, at all times. Whether a gateway/router, or other device is owned by you or us, we have the unrestricted right, but not the obligation, to upgrade or change the firmware in these devices remotely at any time that we determine it necessary or desirable in order to provide Services to you in accordance with our specifications and requirements.
a. Non-Recommended Configurations: Customer Equipment that does not meet our minimum technical or other specifications constitutes a “Non-Recommended Configuration.” NEITHER COMFORTGUARD NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS WARRANT THAT A NON-RECOMMENDED CONFIGURATION WILL ENABLE YOU TO SUCCESSFULLY INSTALL, ACCESS, OPERATE OR USE THE SERVICES. YOU ACKNOWLEDGE THAT ANY SUCH INSTALLATION, ACCESS, OPERATION, OR USE COULD CAUSE CUSTOMER EQUIPMENT TO FAIL TO OPERATE OR CAUSE DAMAGE TO CUSTOMER EQUIPMENT, YOU, YOUR PREMISES. NEITHER COMFORTGUARD NOR ANY OF ITS AFFILIATES, SUPPLIERS OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY SUCH FAILURE OR DAMAGE. We reserve the right to deny you customer support for the Services and/or terminate Service(s) if you use a Non-Recommended Configuration.
1. No Unauthorized Devices or Tampering: You agree not to attach any unauthorized device to the Services. If you make any unauthorized connection or modification to the Services, we may terminate your Service and recover such damages as may result from your actions. Unless expressly authorized by us, you agree not to install anything to intercept or receive any of the Services offered to you or to assist any person in intercepting or receiving any of the Services offered to you. You also agree that you will not attach anything to Customer Equipment, whether installed by you or us, which singly or together impairs the integrity of our Services.
5. Use Of Services
You agree that the Services will be used only by you and the members of your immediate household living with you at the same address and only for personal, residential, non-commercial purposes, unless otherwise specifically authorized by us in writing. You agree and represent that you will not resell or permit another to resell the Services in whole or in part. You will not use or permit another to use the Services, directly or indirectly, for any unlawful purpose, including, but not limited to, in violation of any posted ComfortGuard policy applicable to the Services. Use of the Services for transmission, communications or storage of any information, data or material in violation of any U.S. federal, state or local regulation or law is prohibited. You acknowledge that you are accepting this Agreement on behalf of all persons who use the Services and that you shall have sole responsibility for ensuring that all other users understand and comply with the terms and conditions of this Agreement and any applicable ComfortGuard policies including, but not limited to, acceptable use and privacy policies. You further acknowledge and agree that you shall be solely responsible for any transactions, including, without limitation, purchases made through or in connection with the Services. You agree to indemnify, defend and hold harmless ComfortGuard and its affiliates, suppliers, and agents against all claims and expenses (including reasonable attorney fees) arising out of the use of the Services and/or the Customer Equipment or the breach of this Agreement or any of the applicable ComfortGuard policies by you or any other user.
This Agreement and the Services furnished hereunder may not be assigned by you. The foregoing shall not apply in the event you no longer live at the Premises, provided: (i) You agree to notify us immediately of any changes of ownership or occupancy of the Premises, and (ii) the new occupant of the Premises establishes a new account and accepts the terms and conditions set forth in this Agreement by accessing the Homeowner Portal. We may freely assign our rights and obligations under this Agreement with or without notice to you.
7. Termination Of This Agreement
- Term. This Agreement will be in effect from the time that charges commence until (i) it is terminated as provided for by this Agreement or (ii) it is replaced by a revised Agreement. Unless otherwise specified by ComfortGuard, Service charges begin the day you activate the Service.
- Termination by You. Except if you have signed up for a Pre-Paid Term or during the Initial Service Term, you may terminate this Agreement for any reason by providing us with notice that you terminate your Services by: (i) sending a written notice to the postal address of ComfortGuard; or (ii) call our customer service line during normal business hours. Subject to applicable law or the terms of any agreements with governmental authorities, all applicable fees and charges will accrue until this Agreement has terminated and the Services have been disconnected. The termination would take effect on the day the notice is received by ComfortGuard and ComfortGuard will refund the pro-rated unused portion of any payments received by ComfortGuard for the Services. Except for your termination rights otherwise set forth in this Agreement, if you terminate this Agreement during the Initial Service Term, an early termination fee will apply that is equal to the fees due during the Initial Service Term minus the total fees received by ComfortGuard for Services at the time of termination. Except for your termination rights otherwise set forth in this Agreement, if you terminate this Agreement during a Pre-Paid Term, an early termination fee will apply that is equal to the difference between the total monthly fees due during the Pre-Paid Term minus the total fees paid for Services at the time of termination. If you pay your authorized re-seller directly for the Pre-Paid Term, the earlier termination fee will be paid to the authorized re-seller. If you pay ComfortGuard directly for the Pre-Paid Term, the earlier termination fee will be paid to ComfortGuard.
- Suspension and Termination by ComfortGuard. ComfortGuard reserves the right, subject to applicable law, to act immediately and without notice to terminate or suspend the Services at ComfortGuard’s sole discretion, with or without cause. In the event ComfortGuard terminates the Services without cause, ComfortGuard will refund the pro-rated unused portions of any fees paid received by ComfortGuard for the Services.
- Your Obligations upon Termination.
You agree that upon termination of this Agreement and/or Services you will do the following:
- You will immediately cease all use of the Services; and
- You will pay in full for your use of the Services up to the date that this Agreement has been terminated and the Services are disconnected.
8. Limited Warranty
THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER COMFORTGUARD NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT THE SERVICES WILL DELIVER SPECIFIC RESULTS OR MEET YOUR REQUIREMENTS, PROVIDE UNINTERRUPTED USE, OR OPERATE AS REQUIRED, WITHOUT DELAY, OR WITHOUT ERROR. NEITHER COMFORTGUARD NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS WARRANT THAT ANY COMMUNICATIONS WILL BE TRANSMITTED IN UNCORRUPTED FORM. ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF PERFORMANCE, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, ARE HEREBY DISCLAIMED AND EXCLUDED UNLESS OTHERWISE PROHIBITED OR RESTRICTED BY APPLICABLE LAW.
9. Limitation Of ComfortGuard’s Liability
- Application. The limitations of liability set forth in this Section apply to any acts, omissions, and negligence of ComfortGuard and its underlying third-party service providers, agents and suppliers (and their respective officers, employees, agents, contractors or representatives) which, but for that provision, would give rise to a cause of action in contract, tort or under any other legal doctrine.
- Customer Equipment. CUSTOMER EQUIPMENT MAY BE DAMAGED OR SUFFER SERVICE OUTAGES AS A RESULT OF THE INSTALLATION, SELF-INSTALLATION, USE, INSPECTION, MAINTENANCE, REPAIR, AND REMOVAL OF THE SERVICES. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER COMFORTGUARD NOR ANY OF ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE, LOSS, OR DESTRUCTION TO THE CUSTOMER EQUIPMENT. IN THE EVENT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY COMFORTGUARD, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS, WE SHALL PAY AT OUR SOLE DISCRETION FOR THE REPAIR OR REPLACEMENT OF THE DAMAGED CUSTOMER EQUIPMENT UP TO A MAXIMUM OF $500. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY RELATING TO SUCH ACTIVITY. YOU UNDERSTAND THAT YOUR COMPUTER OR OTHER DEVICES MAY NEED TO BE ACCESSED OR USED EITHER BY YOU OR BY US OR OTHER THIRD PARTIES, IN CONNECTION WITH THE INSTALLATION OR REPAIR OF THE COMFORTGUARD HARDWARE OR SERVICES. THE OPENING, ACCESSING OR USE OF YOUR COMPUTER OR OTHER DEVICES USED IN CONNECTION WITH YOUR COMPUTER MAY VOID WARRANTIES PROVIDED BY THE COMPUTER OR DEVICE MANUFACTURER OR OTHER PARTIES RELATING TO THE COMPUTER’S OR DEVICE’S HARDWARE OR SOFTWARE. NEITHER COMFORTGUARD NOR ANY OF ITS AFFILIATES, SUPPLIERS, OR AGENTS SHALL HAVE ANY LIABILITY WHATSOEVER AS THE RESULT OF THE VOIDING OF ANY SUCH WARRANTIES.
- Other Services or Equipment. BY ACCEPTING THIS AGREEMENT, YOU WAIVE ALL CLAIMS AGAINST COMFORTGUARD FOR INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY BETWEEN THE SERVICES AND ANY OTHER SERVICE, SYSTEMS, OR EQUIPMENT. IN THE EVENT OF SUCH INTERFERENCE, DISRUPTION, OR INCOMPATIBILITY, YOUR SOLE REMEDY SHALL BE TO TERMINATE THE SERVICES IN ACCORDANCE WITH SECTION 7.
- Software. When you use certain features of the Services, such as online features (where available), you may require special software, applications, and/or access to the Internet, ComfortGuard makes no representation or warranty that any software or application installed on Customer Equipment, downloaded from the Service, or available through the Internet does not contain a virus or other harmful feature. It is your sole responsibility to take appropriate precautions to protect any Customer Equipment from damage to its software, files, and data as a result of any such virus or other harmful feature. We may, but are not required to, terminate all or any portion of the installation or operation of the Services if a virus or other harmful feature or software is found to be present on your Customer Equipment. We are not required to provide you with any assistance in removal of viruses. If we decide, in our sole discretion, to install or run virus check software on your Customer Equipment, we make no representation or warranty that the virus check software will detect or correct any or all viruses. You acknowledge that you may incur additional charges for any service call made or required on account of any problem related to a virus or other harmful feature detected on your Customer Equipment. NEITHER COMFORTGUARD NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY HARDWARE, SOFTWARE, FILES, OR DATA RESULTING FROM A VIRUS, ANY OTHER HARMFUL FEATURE, OR FROM ANY ATTEMPT TO REMOVE IT.
In addition, as part of the installation process for the software and other components of the Service, system files on your Customer Equipment may be modified. ComfortGuard does not represent, warrant or covenant that these modifications will not disrupt the normal operations of any Customer Equipment including without limitation your computer(s), or cause the loss of files. ComfortGuard does not represent, warrant, or covenant that the installation of the special software or applications or access to our Web portal(s) will not cause the loss of files or disrupt the normal operations of any Customer Equipment, including but not limited to your computer(s). FOR THESE AND OTHER REASONS, YOU ACKNOWLEDGE AND UNDERSTAND THE IMPORTANCE OF BACKING UP ALL FILES TO ANOTHER STORAGE MECHANISM PRIOR TO SUCH ACTIVITIES. YOU UNDERSTAND AND ACCEPT THE RISKS IF YOU DECIDE NOT TO BACK UP FILES. NEITHER COMFORTGUARD NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY DAMAGE TO OR LOSS OF ANY SOFTWARE, FILES, OR DATA.
- 1. Disruption of Service. The Services are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Services could lead to injury to business, persons, property or environment (“High Risk Activities”). You expressly assume the risks of any damages resulting from High Risk Activities. We shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Services, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you or your property; inability to obtain access to the Premises; failure of any internet connection; failure of utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Services. In all other cases of an interruption of the Services, you shall be entitled upon a request made within sixty (60) days of such interruption, to a prorated credit for any Service interruption exceeding twenty-four consecutive hours after such interruption is reported to us, or such other period of time as may be specifically provided by law. Unless specifically otherwise provided by law, such credit shall not exceed the fixed monthly charges for the month of such Service interruption and excludes all nonrecurring charges, one-time charges, per call or measured charges, regulatory fees and surcharges, taxes and other governmental and quasi-governmental fees. EXCEPT AS AND UNLESS SPECIFICALLY PROHIBITED BY LAW, SUCH CREDIT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR AN INTERRUPTION OF SERVICE. IN NO EVENT SHALL COMFORTGUARD BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES FROM WHATEVER CAUSE, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR WAGES. Any credits provided by ComfortGuard are at our sole discretion and in no event shall constitute or be construed as a course of conduct by ComfortGuard.
- 2. Third Parties. Notwithstanding anything to the contrary in this Agreement, you acknowledge and understand that we may use third parties to provide components of the Services, including without limitation their services, equipment, infrastructure or content. ComfortGuard is not responsible for the performance (or non-performance) of third-party services, equipment, infrastructure or content, whether or not they constitute components of the Services. ComfortGuard shall not be bound by any undertaking, representation or warranty made by an agent or employee of ComfortGuard or of our underlying third-party providers and suppliers in connection with the installation, maintenance or provision of the Services, if that undertaking, representation or warranty is inconsistent with the terms of this Agreement. In addition, you understand that you will have access to the services and content of third parties through the Service(s), including without limitation that of content providers (whether or not accessible directly from the Service). ComfortGuard is not responsible for any services, equipment, infrastructure and content that are not provided by us (even if they are components of the Service), and we shall have no liability with respect to such services, equipment, infrastructure and content. You should address questions or concerns relating to such services, equipment, infrastructure and content to the creators of such services, equipment, infrastructure and content. We do not endorse or warrant any third-party products, services or content that are distributed or advertised over the Services.
- 3. Damages. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER COMFORTGUARD NOR ITS AFFILIATES, SUPPLIERS, EMPLOYEES, AGENTS OR CONTRACTORS SHALL UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO TORT OR CONTRACT) HAVE ANY LIABILITY TO THE CUSTOMER OR TO ANY OTHER PERSON OR ENTITY FOR THE FOLLOWING LOSSES, DAMAGES, OR COSTS: (I) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, PERSONAL INJURIES OR DEATH) THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH (A) YOUR RELIANCE ON OR USE OF THE SERVICES OR (B) THE INSTALLATION, SELF-INSTALLATION, MAINTENANCE, FAILURE, OR REMOVAL OF THE SERVICES (INCLUDING BUT NOT LIMITED TO ANY MISTAKES, OMISSIONS, INTERRUPTIONS, COMPUTER OR OTHER HARDWARE OR SOFTWARE BREACH, FAILURES OR MALFUNCTIONS, DELETION OR CORRUPTION OF FILES, WORK STOPPAGE, ERRORS, DEFECTS, DELAYS IN OPERATION, DELAYS IN TRANSMISSION OR FAILURE OF PERFORMANCE OF THE SERVICE, THE CUSTOMER EQUIPMENT, OR ANY OTHER MISTAKES, OMISSIONS, LOSS OF INFORMATION OR DATA); OR (II) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES, LEGAL FEES, OR OTHER COSTS THAT RESULT DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH ANY ALLEGATION, CLAIM, SUIT, OR OTHER PROCEEDING BASED UPON A CONTENTION THAT THE USE OF THE SERVICES BY YOU OR ANY OTHER PERSON OR ENTITY INFRINGES UPON THE CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
- 4. Customer’s Sole Remedies. Your sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. If the above limitations, the exclusion or limitation of implied warranties, or the limitation or exclusion of incidental or consequential damages are not permitted by law, the liability of ComfortGuard and its employee, affiliates, suppliers, agents and contractors is limited to the maximum extent permitted by law.
- 5. Survival of Limitations. All representations, warranties, indemnifications, and limitations of liability contained in this Agreement shall survive the termination of this Agreement; any other obligations of the parties hereunder shall also survive, if they relate to the period before termination or if, by their terms, they would be expected to survive such termination.
10. Indemnification And Liability Of Customer
YOU AGREE THAT YOU SHALL BE RESPONSIBLE FOR AND SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS COMFORTGUARD AND ITS EMPLOYEES, AFFILIATES, SUPPLIERS, AGENTS AND CONTRACTORS AND SHALL REIMBURSE US FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND COSTS) INCURRED BY US IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS AND CAUSES OF ACTION ARISING OUT OF (I) YOUR MISUSE OF THE SERVICE; (II) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR MISUSE OF THE SERVICE OR ANY UNAUTHORIZED APPARATUS OR SYSTEM; AND (III) YOUR BREACH OF ANY PROVISION OF THIS AGREEMENT.
- Entire Agreement. This Agreement and any other documents incorporated by reference constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and they replace any and all prior written or verbal agreements. If any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect. If ComfortGuard fails to insist upon or enforce strict performance of any provision of this Agreement, it shall not thereby waive any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Agreement.
- Additional Representations and Warranties. In addition to representations and warranties you make elsewhere in this Agreement, you also represent and warrant that:
- Age: You are at least 18 years of age.
- Customer Information: During the term of this Agreement, you have provided and will provide to ComfortGuard information that is accurate, complete and current, including without limitation your legal name, address, telephone number(s), email address and payment data (including without limitation information provided when authorizing recurring payments). You agree to notify us promptly, in accordance with the terms of this Agreement, if there is any change in the information that you have provided to us. If you fail to provide and maintain accurate information, you will breach this Agreement.
- Information Provided to Third Parties. ComfortGuard is not responsible for any information provided by you to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy notice for the Services. You assume all privacy, security and other risks associated with providing personally identifiable information to third parties via the Services. For a description of the privacy protections associated with providing information to third parties, you should refer to the privacy policies, if any, provided by those third parties.
- Revocable License. The Services are protected by trademark, copyright, patent and/or other intellectual property laws and international treaty provisions. You are granted a revocable license to use the Homeowner Portal in accordance with this Agreement. You acknowledge and understand that you are not granted any other license to use the firmware or software used to provide the Services. You shall not take any action nor allow anyone else to take any action that will reverse compile, disassemble, or reverse engineer or otherwise attempt to derive the source code from the binary code of the firmware or software.
- Protection of ComfortGuard’s Information and Marks. All Service information, documents, and materials on our Web sites are protected by trademark, copyright or other intellectual property laws, and international treaty provisions. All Web sites, corporate names, service marks, trademarks, trade names, logos, and domain names (collectively “marks”) of ComfortGuard and its affiliates are and shall remain the exclusive property of ComfortGuard. Nothing in this Agreement shall grant you the right or license to use any of the marks.
- Export Laws. You expressly agree to comply with all applicable export and re-export laws, including but not limited to the Export Administration Act, the Arms Export Control Act, and their implementing regulations. You further expressly agree not to use the Services in any way that violates any provision of these export and re-export laws or their implementing regulations.
- Retention of Rights. Nothing contained in this Agreement shall be construed to limit ComfortGuard’s rights and remedies available at law or in equity. Upon termination of this Agreement for any reason, ComfortGuard and its suppliers reserve the right to delete all your data, files, electronic messages or other Customer information that is stored on ComfortGuard’s or its suppliers’ servers or systems. We shall have no liability whatsoever as the result of the loss of any such data.
- Choice of Law; Venue. The terms of this section entitled “Dispute Resolution” will apply to all disputes that may arise out of, are connected with or relate to this Agreement or the Services, subject only to the following two exceptions: (1) if ComfortGuard reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to ComfortGuard or any third party, ComfortGuard may seek injunctive or other appropriate relief in any court of competent jurisdiction; or (2) any dispute may, at the option of the claiming party, be resolved in small claims court in St. Louis County, Missouri, provided that all claims by all parties in the dispute fall within the jurisdiction of the small claims court but subject to the informal resolution below. Furthermore, in no event will the terms of this section limit ComfortGuard’s ability to investigate complaints or reported violations of this Agreement or to take any action ComfortGuard deems necessary and appropriate to mitigate actions against ComfortGuard, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
- Informal Resolution. If you have any dispute with us or any related third party, arising out of, relating to, or connected with the Services, you agree to contact us; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give ComfortGuard thirty (30) days within which to resolve the dispute to your satisfaction. If ComfortGuard does not resolve the dispute through good faith negotiations under this informal process, you may pursue the dispute in accordance with the arbitration agreement below.
- Arbitration Agreement. Any claims by ComfortGuard, or claims by you that are not resolved by the informal resolution procedure as provided above, arising out of, relating to, or connected with this Agreement or the Services must be asserted individually in binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes (including utilizing desk, phone or video conference proceedings where appropriate and permitted to mitigate costs of travel). This Agreement and each of its parts evidence a transaction involving interstate commerce, and the Federal Arbitration Act (9 USC §1, et. seq.) will apply in all cases and govern the interpretation and enforcement of the arbitration rules and arbitration proceedings. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. In addition to and notwithstanding the terms stated above, the following will apply to your disputes: (1) the arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable; (2) the arbitrator will not have the power to conduct any form of class or collective arbitration nor join or consolidate claims by or for individuals; and (3) you hereby irrevocably waive any right you may have to a court trial (other than small claims court as provided below) or to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding against us or related third parties arising out of, relating to, or connected with this Agreement.
12. Notice Method For Changes To This Agreement
You agree to accept all communications from us regarding use of the Services at the addresses and/or email address you provide during registration. Please promptly update any changes to your registration information using the Homeowner Portal. ComfortGuard is entitled to rely on the email address and U.S. mail address that you last provided to us. You agree to waive all claims resulting from failure to receive communications because of changes in your email or U.S. mail address. From time to time we would like to send you information about ComfortGuard products and services. If you register for a Service, you are granting ComfortGuard permission to communicate with you by email. You can opt not to receive such information from us in the future though the Homeowner Portal.
You agree to be bound by any affirmation, assent or agreement you transmit through the Services you access by computer or other electronic device, including internet, telephonic and wireless devices, including but not limited to any consent you give to receive communications from us solely through electronic transmission. You agree that, when in the future you click on an “I agree,” “I consent” or other similarly worded “button” or entry field with your mouse, keystroke or other device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.
Effective: July 15, 2014